Deutsche Bank Natl. Trust Co. v Fandetta
Annotate this CaseDecided on August 9, 2018
Supreme Court, Suffolk County
Deutsche Bank National Trust Company As Trustee For MORGAN STANLEY ABS CAPITAL I INC. TRUST 2006-WMC2, Plaintiff
against
Marie Fandetta, ANTHONY PICCOLO et al., Defendants.
2013-17474
Amber A. Jurek, Esq.
Gross Polowy LLC
Attorneys for Plaintiff
1775 Wehrle Drive
Williamsville, New York 14221
Michelle L. Moshe, Esq.
Hogan Lovells US LLP
Attorneys for Plaintiff
875 Third Avenue
New York, New York 10022
Fred M. Schwartz, Esq.
Attorney for Defendant MARIE FANDETTA
317 Middle Country Road
Smithtown, New York 11787
Jeffrey Arlen Spinner, J.
Mot. Seq. 001-MD CASEDISP
Original Return Date: January 12, 2017
Final Submit Date:March 3, 2017
Mot. Seq. 002-XMG
Original Return Date : January 12, 2017
Final Submit Date:March 3, 2017
ORDER ON MOTION AND
CROSS-MOTION FOR
FOR SUMMARY JUDGMENT
The Plaintiff has commenced this action claiming foreclosure of a mortgage in the amount of $ 441,000.00 dated February 27, 2006, given to secure a Balloon Note bearing the same date and in the same amount, which mortgage was recorded with the Clerk of Suffolk County on March 21, 2006 in Liber 21259 of Mortgages at Page 648. The mortgage constitutes a first lien encumbering the real property commonly known as 1 Overton Street, Deer Park, Town of Babylon, New York. Plaintiff is a mesne assignee of the original mortgagee.
Plaintiff, alleging that Defendants defaulted upon the installment which came due on January 1, 2010, filed a Summons, Verified Complaint and Notice of Pendency on November 29, 2010 under Suffolk County index number 2010-43435 (the "First Action"). The object of the First Action was foreclosure of the mortgage at issue. While the First Action was still pending, and, more specifically, on July 5, 2013, Plaintiff commenced the instant action (the "Second Action") which demanded identical relief to that sought in the First Action. It was not until October 21, 2014, some 1 year, 3 months, 16 days after commencement of the First Action that Plaintiff sought to discontinue that action.
A review of Plaintiff's Complaint in the Second Action reveals that Paragraph 12 thereof states that "No action was brought to recover any part of the mortgage debt or if any such action is pending final judgment for Plaintiff was not rendered and it is the intent of Plaintiff to discontinue it." This sworn averment is misleading at best and an outright falsehood at worst, which can effectively invoke the provisions of 22 NYCRR § 130-1.1.
With respect to the Second Action, Defendant MARIE FANDETTA appeared through counsel and timely interposed, on August 22, 2013, an Answer which contained twenty two Affirmative Defenses and one Counterclaim. Plaintiff failed and neglected to serve a Reply or any other response thereto. Subsequently and on April 9, 2015, Defendant propounded both a Demand For A Bill Of Particulars and a Notice For Discovery And Inspection, which expressly required compliance within 30 days, based upon the parameters set forth in CPLR §§ 3021 & 3041. Plaintiff failed and neglected to respond to those demands, neither did it move for a protective or limiting order. Instead, Plaintiff, [*2]on December 13, 2016, moved for summary judgment (seq. 001). In response, Defendant cross-moved for dismissal (seq. 002) on January 4, 2017. Both of these applications are now before the Court.
Turning first to Plaintiff's motion in chief, when an application for summary judgment is made pursuant to CPLR § 3212, the Court must be satisfied that there exists neither a triable nor a material issue of fact and that therefore the applicant is entitled to judgment as a matter of law, obviating the necessity for a trial upon the merits of the action, Silliman v. Twentieth Century Fox Film Corporation 3 NY2d 395 (1957), Andre v. Pomeroy 35 NY2d 361 (1974). The moving party must lay bare each and every item of its admissible proof and must clearly demonstrate a prima facie showing of its entitlement to judgment as a matter of law, Alvarez v. Prospect Hospital 68 NY2d 320 (1986). Failure to do so will necessarily result in denial of the application.
In an action claiming foreclosure of a mortgage, the applicant meets its prima facie burden by producing the instruments of indebtedness (the note or bond) together with the mortgage and assignments, if any as well as competent proof of the claimed default, EMC Mortgage Corp. v. Riverdale Associates 291 AD2d 370 (2nd Dept. 2002).
Plaintiff's application facially appears to satisfy the statutory standards for a grant of summary judgment. As a result thereof, the burden necessarily shifts to Defendant to demonstrate the actual existence of a triable or material issue of fact which would suffice to defeat summary judgment, Barrett v. Jacobs 255 NY 520 (1931).
In order to ascertain whether or not Defendant has submitted admissible proof of the existence of a triable issue of fact, the Court must turn to Defendant's cross-motion, which is submitted both on its own as well as in opposition to Plaintiff's application. A careful review thereof leads the Court to the inescapable conclusion that summary judgment in favor of Plaintiff cannot lie in view of triable issues of fact that have been raised, most prominently the asserted failure of Plaintiff to comply with the express language of RPAPL § 1304. This, in turn, will necessarily result in the granting of Defendant's cross-motion.
The provisions of RPAPL § 1304 are both mandatory and quite precise as to the requirements for pre-suit notice. The statute requires the lender (or the assignee or loan servicer, as the case may be) to serve upon the mortgagor a notice of default, by both ordinary and certified mail, in an expressly prescribed form (including certain language, type size, etc.). The same must be served not less than ninety days prior to the commencement of any legal action, Emigrant Mortgage Co. Inc. v. Fitzpatrick 29 Misc 3d 746, rev'd 95 AD3d 1169 (2011). Service of the required notice is a statutory condition precedent to the commencement of the action and the failure to clearly [*3]and unequivocally demonstrate compliance therewith mandates dismissal of the action, Aurora Loan Services LLC v. Weisblum 85 AD3d 95 (2nd Dept. 2011). Under the authority of US Bank National Association v. Carey 137 AD3d 894 (2nd Dept. 2016), a defense sounding in non-compliance with the mandates of RPAPL § 1304 may be interposed at any stage of the proceeding.
Defendant denies ever having received the requisite notice and asserts that proof of service of the notice provided by Plaintiff's loan servicer fails to comply with the mandates of both RPAPL § 1304 and existing decisional law. More specifically, it is asserted that Plaintiff has failed to meet its burden in that it has submittied an Affidavit which contains inadmissible hearsay statements that are both self-serving and conclusory. In accord with the authority of Deutsche Bank National Trust Company v. Spanos 102 AD3d 909 (2nd Dept. 2013), where Plaintiff fails to provide an affidavit which affirmatively reflects service of the notice in accord with the statute, summary judgment cannot lie. Defendant also contends that the notice is facially defective in that it fails to set forth the precise amount necessary to remediate the default as well as failing to comply with the express provisions of the mortgage, specifically Paragraphs 19 and 22 thereof. On these claims alone, dismissal is mandated in that both the notice and its purported service do not strictly comply with RPAPL § 1304, see Hudson City Savings Bank v. DePasquale 113 AD3d 599 (2nd Dept. 2014).
Defendant further contends that the within action may not be maintained under the provisions of RPAPL § 1301(3). More precisely, it is asserted that this action was commenced and prosecuted while a prior action which sought the identical relief was active. The provisions of RPAPL § 1301(3) prohibit the commencement of a subsequent action to foreclose the mortgage or to collect the mortgage debt, absent leave of court, while another action is pending. Here, it is beyond any dispute that this action was commenced while the First Action was pending and that the same was accomplished without the statutorily required leave of court, in direct derogation of the provisions of RPAPL § 1301(3). The fact that Plaintiff, in its Complaint, falsely swore that no other action was pending coupled with the fact that it delayed in addressing the matter for almost sixteen months after commencing this action clearly militates in favor of dismissal. Indeed, under the authority of Aurora Loan Services LLC v. Reid 132 AD3d 788 (2nd Dept. 2015) dismissal is clearly warranted.
Finally, Plaintiff's failure to interpose any response whatsoever to Defendant's timely counterclaim is sufficient, as a matter of law, to deem Plaintiff's liability upon said counterclaim to be established since such a default results in admission, Hunting Supply Corporation v. Febrey 22 AD2d 1010 (4th Dept. 1964). Therefore, the liability of Plaintiff upon Defendant's counterclaim is established and the matter may proceed to a hearing in damages thereon.
Accordingly, it is
ORDERED that the application of the Plaintiff (seq. 001) for summary judgment and an Order of Reference pursuant to CPLR § 3212 and RPAPL § 1321 shall be and is hereby denied in its entirety; and it is further
ORDERED that the cross-motion by Defendant MARIE FANDETTA (seq. 002) for dismissal of this action pursuant to RPAPL § 1301(3) as well as upon the failure of Plaintiff to strictly comply with RPAPL § 1304 shall be and is hereby granted; and it is further
ORDERED that Plaintiff's action in chief shall be and is hereby dismissed; and it is further
ORDERED that Defendant's counterclaim is severed and continued for the purpose of a determination of the damages, if any, that may be recovered by Defendant; and it is further
ORDERED that upon payment of the proper fees by Plaintiff, the Clerk of Suffolk County shall cause the notice of pendency herein to be cancelled and discharged of record; and it is further
ORDERED that any relief not expressly granted shall be and the same is hereby denied; and it is further
ORDERED that counsel and parties shall appear at a conference to be held before the Court on August 22, 2018 at 2:30 p.m., Courtroom 4, Cromarty Court Building, 210 Center Drive, Riverhead, New York.
Dated: August 9, 2018
Riverhead, New York
_____________________________
HON. JEFFREY ARLEN SPINNER J.S.C.
__X__SCAN__X__ NON-FINAL DISPOSITION
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